Overall this is a successful article: timely, thought-provoking, humane; it considers both the crime and punishment sides of the equation; most importantly it’s a handy one-stop read summarizing a lot of the recent writing and research on the topic of mass incarceration (destined for college classes around the nation, and a great link to share with your friends/family who don’t know much about the issue). Hopefully it’ll find a wide readership. A well-timed New Yorker article can sometimes change the national conversation on an issue (see, e.g., the influence of Atul Gawande on framing Obama’s health care agenda, or how that Jane Mayer article made the Koch brothers a household name).

That said, nothing Gopnik says is news to anyone who already follows these issues. America currently incarcerates more people, as a percentage of its population, than does any peer nation and than did America at any previous point in its history. Even states we might think of as very liberal — Massachusetts, Connecticut, etc. — have incarceration rates that would be very high by European standards. I broke down the data state-by-state here.

On a first quick read (I’ll have to return to the article when I have more time), I think that Gopnik, like his sources, too easily assigns a lot of causal significance to 19th-c. developments (the penitentiary movement, slavery, etc.) to explain a phenomenon — the boom in prison construction and the massive explosion in the incarcerated population — that really only began in the 1970s, and began rather suddenly. What’s the mechanism of continuity? But, this is perhaps an academic historical debate; I don’t have strong reservations with Gopnik’s account overall, and for better or worse, it’s certainly an effective summary of the literature. (Gopnik has a real talent for synthetic criticism, as evidenced earlier this month by his essay on the Spanish Inquisition.)

Along those lines, I’m increasingly not sure I’m comfortable with how much of the rhetoric and commentary on mass incarceration uses statistical comparisons to slavery and the Gulag. I think there are a lot of methodological issues there (for one thing, there’s a constant slippage back-and-forth in these discussions between per capita and absolute numbers that I don’t think is fully theorized — this has also been a major critique of Steven Pinker’s recent book on violence) and I think the scale of American incarceration is enough of an evident problem on its own without needing to bring in historical analogies that are less than analytically rigorous. Moreover, the comparison to slavery actually undermines what ends up being Gopnik’s ultimate point. With slavery, we really did need to dismantle the entire social-political-economic system to end it. Gopnik’s conclusion in this piece is that, with mass incarceration, it’s precisely the opposite: we don’t need a revolution; “the intercession of a thousand smaller sanities” would be enough. (On the other hand, maybe the provocative historical comparisons are needed to force people to pay attention. Would be curious to hear what readers think. I guess this is a subset of a bigger set of questions about how useful historical analogies ever are, and for what purposes. For instance, James Forman makes some useful critiques of Michelle Alexander’s Jim Crow frame in a recent NYU Law Review article, and in a shorter piece at the Boston Review.)

All that said, certainly I think you should read the article, pass it along to friends and family, and discuss it in the comments here or elsewhere. I’m glad these issues are finally on the radar of the intelligentsia.

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I’d never read Stuntz before, but I found the idea that the Constitution is too focused on procedure instead of principles — “You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life” — really provocative.

Hi G.D. – if you are interested specifically in Stuntz’s critique of proceduralism, the original articulation of that argument was his Yale Law Journal article, “The Uneasy Relationship Between Criminal Procedure and Criminal Justice.” Let me know if you have trouble tracking it down. I think the arguments are reprised in his recent book, but I’d recommend the article if you want to see that particular argument worked out.